HL Deb 12 February 1959 vol 214 cc229-37

5.58 p.m.

Order of the Day for the House to be put into Committee read.

Moved, That the House do resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD MERTHYR in the Chair]

Clauses 1 and 2 agreed to.

Clause 3:

Effect of registered notice and proceedings relating thereto

(3) Subject to the next following subsection, any person who, if such a structure as is mentioned in subsection (1) of this section had been erected as therein mentioned, would have had a right of action in any court in respect of that structure, on the grounds that he was entitled to a right to the access of light to the dominant building across the servient land, and that the said right was infringed by the erection of that structure, shall have the like right of action in that court in respect of the registration of a notice under the last preceding section:

Provided that an action shall not be begun by virtue of this subsection after the notice in question has ceased to have effect.

LORD GRANVILLE-WEST moved, in subsection (3), to leave out the proviso. The noble Lord said: My purpose in moving the Amendment standing in my name on the Marshalled List is to draw attention to a difficulty which will almost certainly arise if this Bill passes into law in its present form. As your Lordships know, to acquire a right of light under the Prescription Act, 1832, it is necessary, broadly speaking, to show that the flow of light to a building has been actually enjoyed for a period of twenty years without interruption, and an interruption lasting less than a year does not stop the running of time. That is because of Section 4 of the Act of 1832 which provides that nothing shall be deemed to be an interruption unless the same shall be submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof".

The points I wish to make in support of the Amendment that I am moving are first of all dealing with the period of time, the twenty years, and secondly the interruption. As I see it, the difficulty arises in the case of a man who has enjoyed the passage of light to his building for a period of over nineteen years, or perhaps extended, as the time, is under this Bill. If he has enjoyed that right for over nineteen years, then it is impossible for time to run against him, and by the expiration of twenty years he is entitled to his statutory right under the Prescription Act, 1832. If, however, he acquiesces in an interruption which continues for a period of more than a year, then, of course, a fresh period of twenty years has to begin. Therefore, in this case the difficulty I see is that under the present law a man can object to an obstruction. such as a screen, erected to shut out the light passing to his premises, and he need not bring an action within twelve months. Indeed, so long as he protests in a reasonable manner against the existence of that screen he can bring his action after the twelve months have expired. It is possible, therefore, for him, having enjoyed that right over nineteen years, to bring his action in the court after the twenty years and succeed in establishing his statutory right to light.

Subsection (5) (b) of Clause 3 provides that as from the date of registration of a notice under the Bill and until such time as an action is brought he shall be deemed to acquiesce in the obstruction which is to be treated as resulting from the registration of the notice under this Bill. If, therefore, the notice is registered under this Bill on the day after the original nineteen years have passed, he finds himself in this difficulty: he can bring his action only when the full period of twenty years has elapsed, because it is only when that full period has been enjoyed that his statutory right crystallises, and, by the proviso against which I am now speaking, he cannot bring his action after the period of one year beginning with the date of registration of notice; for the notice then ceases to have effect. He is, therefore, in an almost impossible position and the provisions of the Prescription Act, 1832, will be frustrated so far as he is concerned.

I believe that this is a serious difficulty which may confront many people when this Bill passes into law. I realise that the Amendment which I have moved will not completely cure that difficulty but I have raised this point because I believe it is one of substance. I hope that the noble and learned Viscount who will no doubt be dealing with this Amendment will perhaps give consideration to it, because there may be many cases that will be affected by this proviso in the Bill whereby persons will be deprived of their rights to light which, under the present law, and if this Bill had not been brought into force, they would have enjoyed as a statutory right. I therefore beg to move.

Amendment moved— Page 4, line 29, leave out lines 29 and 30.—(Lord Granville-West.)

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

My Lords, I am grateful to the noble Lord, Lord Granville-West, for raising this point, and for the obvious care and study he has given to this Bill, which has been shown by his speech. If your Lordships will allow me, I should like first to deal with the specific argument which he advanced and then say one or two more general words about the problem raised by this subsection and the proviso. It is perfectly correct, as the noble Lord said, that the registration of a notice may, under Clause 3 (3), be challenged by the dominant owner only by action in court on the ground that he was entitled to a right to the access of light to his building which the erection of a screen would infringe; and that under the proviso to the subsection the action must be brought within one year from the date of registration.

I agree that there is nothing between us on the underlying law, for, as the noble Lord has stated, the right of light is acquired indefeasibly only after twenty years of enjoyment, by Section 3 of the Prescription Act, 1832, and nothing short of a whole year's obstruction interrupts the enjoyment. I agree with the noble Lord—I am only re-stating this to show that we are proceeding from the same premises—that where a notice is registered after light has been enjoyed for nineteen years and one day, the notional obstruction can no longer prevent the twenty years from running; and on the other hand, the dominant owner cannot challenge the registration on the strength of an acquired right of light until the twenty years have run—that is, one day before the expiration of the one year period permitted, by the proviso, for bringing the action.

I am taking, as the noble Lord did, the extreme example in order to raise the problem quite shortly, but of course the dominant owner is still placed in a difficult position if the period is one week or one month. As I have said, this is a most valuable point. I can assure the noble Lord that I shall consider it yet again after hearing his speech. I should like to consider fully the arguments which he has deployed, but I believe my answer is a good one and I should like to put it to him so that he may consider it before another stage of the Bill.

Broadly, the answer is that I do not believe any Amendment is needed, because the dominant owner can challenge the registration at any time by a quia timet action. It is well established that the court will restrain the erection of a building which will obstruct ancient lights if its erection is continued, even though at the time of the action no obstruction is yet effected. If I may give the authority to a brother member of the legal profession, I would say that the case upon which I was relying is Lichfield Speer v. Queen Anne's Gate Syndicate (1919, 1 Ch. 407). From that it follows logically that the court will restrain an act which would effect an obstruction at a future date if it is allowed to continue, even though as yet the right of light which it will obstruct has not accrued.

I believe the noble Lord had clearly in mind, although he did not emphasise this point, that registration of a notice is more drastic than the erection of a "spite-screen"—despite that name— because it cannot be challenged by verbal or written protests. That is true, but it is inevitable. The registration of notices can be assimilated to the erection of a screen only as far as it is practicable. It is, for instance, impossible to devise anything comparable to a dominant owner's right to abate the nuisance by knocking down the screen. On the Second Reading I dealt broadly with the point that generally the "spite-screen" it out of keeping with our views to-day and that we are trying to assimilate the effect of the notice as far as we can to that of a screen; but since the rights of the parties must flow and he ascertained from the entries in the register, it is essential that, apart from action in court, nothing which does not appear in the register should have any effect. It follows that the registration cannot be capable of challenge except by action in court.

My Lords, on the general point, I am sorry to take the time of the House, but I want the noble Lord to appreciate my general views of the position, and moreover I know there are many people affected, and I should like them also to be able to refer to Hansard on this point. Under subsection (2) of this clause, a notice ceases to have effect after one year from registration, unless cancelled or, in the case of a notice registered with a certificate of urgency under Clause 2 (3) (b), allowed to lapse at an earlier date. For practical purposes the importance of the proviso lies in the fact that it imposes a one-yeas time limit on proceedings to challenge registrations likely to last for a whole year; because, as I have pointed out, only a notice which has remained in the register for a whole year effects an interruption in the period of enjoyment which gives rise to an easement of light under the Prescription Act, and therefore there could be no point in litigating about a registration which has been cancelled or lapsed before the expiration of a year.

A screen interrupts the access of light to the dominant building from the date of its erection until it is either removed or challenged. If it is allowed to remain in position for a year it will have effected an interruption which in fact has obstructed the light for that period and which, therefore, in law, under Section 4 of the Act of 1832, has broken the period of enjoyment which gives rise to the prescriptive acquisition of rights under Section 3, and no proceedings subsequently brought can alter the fact or the legal consequences which flow from it. If registration is to have the same effect as the erection of a screen, it follows that registration must also be incapable of challenge after one year.

I should like to deal with the general argument that this time limit may lead to an injustice, and I think the noble Lord will agree that what has worried people is that the owner of the dominant building, or others interested in it, may not hear of the registration in time, or may not be able to complete investigations and preparation of the legal proceedings before the year is out. The answer which I see to that, and which I am sure the noble Lord will consider, is, first, that the same difficulties face those persons where a screen is put up. A non-resident landlord or a mortgagee may not become aware of the erection of the screen for some time, or it may take a considerable time to prepare court proceedings. Secondly, the legal rights of the parties must not be left uncertain for too long a period. We have to look at the other side of the question, the position of the servient owner. He intends to build on his land, and he must be able after a time to go ahead with his plans with the reasonable assurance that his neighbour cannot prevent him from building.

What is the remedy for these difficulties? I think it is this: that in a proper case the dominant owner may have a remedy under the Common Law doctrine of prescription by lost modern grant. A year's obstruction of the access of light, and consequently a year's registration of the notice, bars the acquisition of right of light by prescription under the Act of 1832, because the right can be acquired only by proof of twenty years' uninterrupted enjoyment immediately before the claim to the right is asserted. A year's obstruction does not, however, in my view, prevent the acquisition of a right of light under the doctrine of a lost modern grant. Where access of light has been enjoyed over a period exceeding nineteen years, followed by an interruption of one year or more, the court may yet raise the presumption of a lost grant on the facts placed before it, more particularly if there is evidence to show that the dominant owner did not intend to acquiesce in the interruption or was prevented from challenging it by factors outside his control.

If the noble Lord will look at the proviso at which his Amendment is directed he will see that it reads: Provided that an action shall not be begun by virtue of this subsection after the notice in question has ceased to have effect. That means that the action must be based on subsection (3), and that depends on his being a person who would have a right of action in any court in respect of that structure on the grounds that he was entitled to a right to the access of light to the dominant building across the servient land, and that the right was infringed by the erection of the structure. Therefore, the proviso bites only on that action; it does not bite on an action which is based on the Common Law doctrine of lost modern grant.

So that is on the general position, which I think is still open and eases one of the matters which the noble Lord had in mind—namely, that this proviso would have a completely barring effect. I apologise to your Lordships for taking so long, but I am genuinely grateful to the noble Lord for raising this point. I hope he will be good enough to consider what I have said and if there are still any doubts, as he knows, I and my staff will be only too pleased to consider them. But I hope that I have at any rate dispelled some of the difficulties which he had in mind.

LORD GRANVILLE-WEST

My Lords, I am most grateful to the noble and learned Viscount for the great attention he has given to the Amendment which I put down upon the Order Paper. I am particularly grateful to him for the exhaustive review he has given of the legal principles involved in this matter, and I appreciate very much that he has become seized of the point which I had endeavoured to make, although, I am afraid, rather haltingly in the circumstances.

The only point I would make to the noble and learned Viscount with regard to the doctrine of the lost modern grant is that that, of course, has nothing like the certainty that a right of prescription would have under the Prescription Act of 1832, and it depends entirely on the view the judge takes as to whether in fact the lost modern grant be presumed. Indeed, there has been, as the noble and learned Viscount knows, a considerable difference of judicial opinion as to whether it is possible to rebut the presumption that a lost modern grant has ever been granted. Some take the view that no evidence can be called to show that no grant was, in fact, made. Other learned judges have taken the view that it is an irrebuttable presumption. It is, of course, a complete fiction—a fiction which has been described as imposing an intolerable burden upon the consciences of judges, because it has meant that they were proceeding upon a doctrine and presuming that a grant had been made when no one believed that it had in fact been made. It is in that respect a most unsatisfactory method of deciding this question, particularly as we are dealing with a matter of legislation.

I am very grateful to the noble and learned Viscount for saying that he will look at the point again: and, indeed, I am quite sure that he wishes to meet the problem, if a problem there be. I am most anxious to study with great care the explanations that he has given with regard to the Amendment and to the principles of law which apply, and I should like to say how deeply grateful I am to him for the trouble he has taken. In those circumstances, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

Clauses 4 and 5 agreed to.

Clause 6 [Power to make rules]:

THE LORD CHANCELLOR

Perhaps I may discuss the other two Amendments together; I can assure your Lordships that they are little more than drafting Amendments. Paragraph (b) of Clause 6 at present confers power to make rules to give effect to the provisions of Clause 3 as to the cancellation and variation of the registration of notices. Clause 3 refers to cancellation and variation only in connection with orders of the court. At present the rule-making power conferred by Clause 6 is purely permissive. I think it is more appropriate that the exercise of the power should be mandatory, in so far as it relates to giving effect to orders made by the court, and the Amendments will make it so. The Amendments also prevent an argument which could be raised on the present wording. namely, that since the rule-making power refers only to cancellation and variation under Section 3—that is, under an order of the court—there is no power to make rules providing for the cancellation or variation of registrations on the initiative of the parties. I think this ought to be dealt with. I beg to move the first of the two Amendments.

Amendment moved— Page 6, line 12, leave out from beginning to ("and") in line 14.—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

I beg to move.

Amendment moved— Page 6, line 15, at end insert— ("(2) Any rules made by virtue of subsection (6) of the said section fifteen as applied by the preceding subsection shall (without prejudice to the inclusion therein of other provisions as to cancelling or varying the registration of notices or agreements) include provision for giving effect to any order of the court under subsection (4) of section three of this Act.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Remaining clauses agreed to.

House resumed.